Art and the First Amendment

Tushnet, Mark

We have it on the highest authority—Justice Souter writing for a unanimous Court in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston—that the paintings of Jackson Pollock are "unquestionably shielded" by the First Amendment. Of course we probably knew that from the development of obscenity law, driven as it was by a need to ensure that the proscription of obscenity not lead to the suppression of depictions that are merely erotic. Beyond authority, though, exactly why are Pollock's paintings covered by the First Amendment? Consider that core First Amendment doctrine places under close scrutiny statutes that regulate speech based on its content, and, under even closer scrutiny, statutes that regulate speech based on the viewpoint it expresses. Yet, what exactly—or even roughly—is the content of Pollock's Blue Poles, No. 11, or the viewpoint it expresses? This Essay explores the question of the First Amendment's coverage of nonrepresentational art, which proves quite difficult to answer satisfactorily—that is, in a doctrinal form that preserves other seemingly "unquestionable" results. Every approach one might take to explaining why the First Amendment covers art—that art is communicative, that it contributes to the creation of a culture of self-directed individuals and others I address—generates odd anomalies. The exploration does not question the conventional conclusion that the First Amendment covers artwork, but rather worries some of the often-unstated assumptions that underlie that conclusion. We will see, for example, that some things one might want to say about the question of whether the First Amendment covers nonrepresentational art lead to the suggestion, implicit in Archibald MacLeish's observation about poetry, that James Joyce's Ulysses might not be covered, surely a peculiar result. I do not mean to question Hurley's assertion about Jackson Pollock's paintings. Rather, I believe that by asking how that conclusion might be justified, we will come across some unexpected facets of the First Amendment, with some implications for other doctrinal areas abutting the First Amendment.

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Columbia Journal of Law & the Arts

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July 3, 2012